DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Mr Jeffrey Vassallo
v
Easitag Pty Ltd
(C2020/6254)

COMMISSIONER CIRKOVIC

MELBOURNE, 14 SEPTEMBER 2021

Application for costs - section 611 - previous decision to award indemnity costs on the basis that application made was vexatious, without reasonable cause and had no reasonable prospect of success - assessment of indemnity costs- order made.

[1] This decision concerns an application by Easitag Pty Ltd (Easitag) made under s 611 of the Fair Work Act 2009 (Act) for a costs order against Mr Jeffrey Vassallo. This decision follows my earlier decision of 17 June 2021 in which I determined to award Easitag costs against Mr Vassallo on an indemnity basis. 1

[2] This matter has a lengthy history. For the purposes of this decision, it is sufficient to refer to what was outlined by the Full Bench of the Commission in a decision made on 26 July 2021 (the 2021 appeal costs decision):

“In 2017, Mr Vassallo brought a dispute to the Commission under s 739 of the Act and the dispute resolution procedure in the Electrical, Electronic and Communications Contracting Award 2010 (Award), in which he contended that he should properly be classified at level 10 of the Award. On 15 November 2017, the Commissioner rejected Mr Vassallo’s claim and determined that he was properly to be classified at level 4 of the Award (2017 decision). Mr Vassallo appealed. In a decision dated 24 January 2018, a Full Bench of the Commission refused permission to appeal (2018 appeal decision). Mr Vassallo then commenced proceedings in the Federal Court, in which he contended that he had been underpaid as a result of not having been correctly classified under the Award. On 23 June 2020, the court dismissed the application. Mr Vassallo also applied to have the President of the Commission refer questions of law to the Court pursuant to s 608 of the Act. The application was denied.” 2

[3] Mr Vassallo thereafter made an application under s 603 of the Act (the s 603 application), in which he asked me to vary or revoke the 2017 decision. I concluded in my decision of 12 January 2021 (the s 603 decision) that the majority of Mr Vassallo’s submissions sought to reagitate matters that were the subject of the 2017 decision, and that the s 603 application was an abuse of process, groundless and vexatious. I dismissed the s 603 application under s 587(1)(b) of the Act. 3 Mr Vassallo appealed. In a decision made on 23 March 2021, the Full Bench of the Commission, refused Mr Vassallo permission to appeal (2021 appeal decision).⁴Easitag then sought its costs in relation to Mr Vassallo’s 2021 appeal on an indemnity basis, or alternatively on a party-party basis. In the 2021 appeal costs decision, the Full Bench found Mr Vassallo’s appeal to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 5919
Decision Date: 14 SEPTEMBER 2021

CaseChat Overview and Summary

In the case of Mr Jeffrey Vassallo against Easitag Pty Ltd, the Federal Court was tasked with considering an application for costs pursuant to section 611. The applicant, Mr Vassallo, sought to have the costs of his legal proceedings awarded to him. The matter had previously been the subject of an application for indemnity costs, which was granted by the primary judge on the grounds that the initial application for costs was vexatious, lacked reasonable cause, and had no reasonable prospect of success. The primary judge subsequently made an order for an assessment of the indemnity costs, which was the subject of the present application.

The legal issues before the court revolved around the appropriate assessment of the indemnity costs awarded to Easitag Pty Ltd. The court had to determine the quantum of costs that should be awarded to the respondent, taking into account the factors outlined in section 611. The primary judge had already determined that the application for costs was vexatious, without reasonable cause, and had no reasonable prospect of success, but had not yet assessed the indemnity costs. The applicant, Mr Vassallo, contested the amount of indemnity costs sought by Easitag Pty Ltd, arguing that it was excessive and not reflective of the work actually undertaken.

The court considered the principles applicable to the assessment of indemnity costs, including the need for proportionality and reasonableness. The judge examined the evidence provided by both parties and assessed the work undertaken and the associated costs. After careful consideration, the court found that the amount sought by Easitag Pty Ltd was appropriate and reflective of the work actually carried out. The court emphasised the importance of the primary judge's findings regarding the vexatious nature of the initial application for costs and the lack of reasonable cause or prospect of success. Accordingly, the court made an order for the indemnity costs as assessed by the primary judge, confirming the appropriateness of the amount awarded.

Orders